Magazine | February 19, 2018, Issue

Amateur Politicians in Robes

(Roman Genn)
Supreme Court justices should not try to be statesmen

Partisan gerrymandering, a practice with a longer history in our country than the Constitution, is before the Supreme Court this term. The justices have heard arguments in Gill v. Whitford, a lawsuit alleging that the Constitution forbids drawing legislative district lines for excessive partisan advantage.

Some proponents of the lawsuit have high hopes for the effects of a victory. John Kasich, the Republican governor of Ohio, says that gerrymandering results in “polarization and division” and “needs to be on the dustbin of history.” He has joined a brief urging the Court to curtail the practice.

For the Court to assume the task of policing politics in redistricting would be a major expansion of its role in our national life. The constitutional argument the lawsuit puts forward — that gerrymandering punishes people for their political associations and therefore violates the First Amendment — would have astonished those who ratified the Bill of Rights.

But the idea that judicial power is a tool for improving our national political life: That idea is not novel. Many politicians and citizens appear to think it is for the best that the Supreme Court has taken it upon itself to set national policy on contentious issues rather than allow those issues to inflame political debates. The justices have sometimes felt themselves called not only to apply the Constitution to cases and controversies but to guarantee social peace.

Perhaps the Court’s most explicit statement to this effect came in Planned Parenthood v. Casey, a 1992 case concerning abortion regulation. The authors of the Court’s plurality opinion presented the case as an institutional crisis. The Court had decided 19 years previously, in Roe v. Wade, to treat abortion as constitutionally protected. “Yet,” the Court lamented in the opening words of the opinion, “that definition of liberty is still questioned.”

The justices couldn’t quite bring themselves to say that Roe was correctly decided. They gestured toward that position but spent much more time on a different argument: “To overrule under fire” would unacceptably undermine the Court’s legitimacy, which would in turn be a catastrophe for the nation. Americans “aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.” And so it was time for opponents of Roe to put down their placards and end their marches, because “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

Whether or not this heroic judicial self-conception is truly “rooted in the Constitution” — note the evasiveness of that phrase — it cannot be said that the justices have succeeded in unifying the country. Leave aside the fact that the second time the Supreme Court used its power to strike down a federal law, it helped to bring on a civil war. Even in our more recent experience, the Court has itself caused more national division than it has cured. On no issue has this been more true than abortion, the very subject the justices considered in Casey. The Supreme Court nationalized and polarized the abortion debate.

Without Roe v. Wade, we might still have had passionate arguments about abortion policy. But Republican politicians in liberal areas would probably not have to oppose nearly all abortions to have national prospects, and Democratic politicians would not have to take the opposite stance. Nor would every nomination to a federal court set off a proxy battle between the opposing sides of the abortion debate. Had the Supreme Court stayed out of the abortion debate, it is likely that more Americans would respect it.

One reason that the Court has been tempted to aggrandize itself is that it really does play an important role in unifying the country. The Court’s enforcement of the Constitution’s supremacy clause, which subordinates state law to federal law, is a powerful protection against balkanization and disunion. It is also true that the Court’s standing with the country is important to safeguard. Deference to precedent is valuable in part because it inculcates respect for the Court’s decisions, or at least insulates them from criticism: You may not like this ruling, but the Court had little choice but to make it. Construing statutes to be in harmony with the Constitution serves a similar purpose: It reduces the number of head-on collisions between the Court and the political branches.

But the legitimate means of protecting the Court’s legitimacy are forms of judicial self-restraint, a husbanding of institutional capital, and they have limits that are obvious in theory even if sometimes difficult to apply in particular cases. A gravely erroneous precedent may have to be abandoned; a statute should not be rewritten to put it in compliance with the Constitution. The fact that a precedent has been criticized cannot be a reason for abandoning it, or, as in Casey, for keeping it.

It has often been suggested that Chief Justice John Roberts has been particularly adroit in protecting the Court’s reputation. When possible, he has sought to issue decisions on narrow grounds that command unanimous consent from the justices. He also — speculation holds — shied away from striking down Obamacare for fear of the political consequences. Having initially voted in chambers against the law in 2012, Roberts eventually supplied the decisive vote for keeping it. He construed its individual mandate to be a constitutionally permissible tax on going without insurance, rather than an impermissible requirement that people buy it.

In 2015, the Court considered another Obamacare lawsuit. This one alleged that the Obama administration had provided subsidies in states where the text of the statute did not authorize them. Roberts again construed the law in a way that pleased its supporters, and avoided doing great damage to one of the administration’s key projects. He had, it was once more widely assumed, done the politic thing.

If Roberts voted as he did in these cases to keep from angering Democrats, he acted wrongly. His constructions of Obamacare were either plausible or not. If they were plausible, his votes would have been justified even if Democrats and Republicans disliked them. If they weren’t, Roberts illegitimately rewrote the law in the name of legitimacy.

“The interest of the man must be connected with the constitutional rights of the place,” James Madison wrote in Federalist No. 51, by way of explaining how rivalry between the branches of government would buttress the constitutional design. Are we so sure these checks and balances are in working order today? The justices have an interest in expanding their purview. Whether their ambition is still connected to the Constitution is a different matter.

It is no more clear that Roberts’s maneuvers, assuming that is what they were, resulted in heightened respect for the Court than it is that the abortion decisions have. The existence of speculation about Roberts’s motives itself suggests that the Court is perceived to be more susceptible to political pressure than it had been before. The more politicians and activists believe that their pressure has a chance of working, the more they will apply it. One should be careful in suggesting that judges should be statesmen, since they are not selected for the keenness of their political judgment.

In 1946 Justice Felix Frankfurter warned against having the courts enter the “political thicket” of redistricting. The Supreme Court eventually entered it anyway, over his dissent, and admittedly its reputation has not suffered. Adjudicating how much partisanship in redistricting is too much would, however, plunge it deeper into that thicket. While the lawsuit’s proponents are convinced that they have found a neutral method to make these determinations — and even argue that the Constitution compels this method — it would not be shocking if in a few years we began to see Democratic appointees voting to invalidate redistricting plans that favor Republicans, and vice versa.

If the justices really think the Constitution requires judicial superintendence of partisan gerrymanders, then that possible consequence has to be swallowed. But if, instead, they are eager for a chance to make American politics better, they should pause to ask how successful their previous interventions in politics have been. The decisive justice in that case is expected to be Anthony Kennedy, the only author of the Casey plurality still on the Court.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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